519 N.E.2d 419 | Ohio Ct. App. | 1987
This cause came on to be heard upon an appeal from the Court of Common Pleas of Butler County.
This is an appeal by the state of Ohio, under R.C.
On November 8, 1985, the Butler County Grand Jury issued an indictment charging appellee with one count of involuntary manslaughter in violation of R.C.
"As a proximate result of the said Gerald Cook's committing a misdemeanor, to wit: Negligent Assault[,] contrary to Ohio Revised Code, Section
"Specification that the Grand Jurors further find and specify pursuant to R.C.
On April 29, 1986, appellee filed a motion to either dismiss the indictment or amend the charge to negligent homicide under R.C.
The state brings this appeal under R.C.
"A prosecuting attorney * * * may appeal as a matter o[f] right any decision of a trial court in a criminal case * * * which decision grants a motion to dismiss all or any part of an indictment *22 * * * and may appeal by leave of the court to which the appeal is taken any other decision, except the final verdict, of the trial court in a criminal case * * *."
The General Assembly adopted R.C.
The state asserts its right to appeal under this statute, relying upon the Ohio Supreme Court's recent decision of State v.Hayes (1986),
The trial court held that the limited portion of the indictment charging the defendant with being a person in loco parentis to the victim was unconstitutional. The court permitted the remainder of the indictment to stand since the trier of fact could find that the defendant was the victim's stepparent, guardian or custodian. The court of appeals concluded that there was no final appealable order and dismissed the appeal for want of jurisdiction.
The Supreme Court reversed, holding that the trial court's ruling that the "in loco parentis" language of R.C.
In the case at bar, the trial court did not dismiss any part of the indictment. The court only amended the charged crime from involuntary manslaughter to negligent homicide. The court did not dismiss or "strike" any language relative to the charged crime or criminal conduct. The state submits that the trial court's ruling, in essence, dismissed the firearm specification appearing on the indictment, thereby bringing the case within the purview of R.C.
The firearm specification appeared in the indictment under R.C.
We interpret R.C.
The state additionally argues that the trial court's amendment is improper under Crim. R. 7(D) and, therefore, appealable.5 We disagree. The provisions of Crim. R. 7(D) are primarily for the defendant's protection. The rule prohibits any amendment to the indictment which would change the nature or identity of the charged crime so the accused can always be aware of the charges he faces and can prepare his defense accordingly. Appellee specifically waived any errors under Crim. R. 7(D) associated with the amendment when the trial court changed the charge to negligent homicide. Crim. R. 7(D) is simply inapplicable under the facts of this case.
Since the decision which is the subject of the case at bar is not one which the state may appeal as a matter of right under R.C.
The assignment of error properly before this court having been ruled upon as heretofore set forth, it is the order of this court that this appeal is dismissed.
Appeal dismissed.
KOEHLER, P.J., JONES and HENDRICKSON, JJ., concur.
"No person shall cause the death of another as a proximate result of the offender's committing or attempting to commit a misdemeanor."
"No person shall negligently cause the death of another by means of a deadly weapon or dangerous ordnance as defined in section
"No person shall negligently, by means of a deadly weapon or dangerous ordnance * * *, cause physical harm to another."
"(A) No person shall engage in sexual conduct with another, not the spouse of the offender, when any of the following apply:
"* * *
"The offender is the other person's natural or adoptive parent, or a stepparent, or guardian, custodian, or person in locoparentis." (Emphasis added.)